Smoking Marijuana While Black

by Editor
July 19, 2017 at 1:00 pm

http://www.smartertimes.com/1549/smoking-marijuana-while-black

A New York Times editorial about arrests for marijuana smoking in public expresses regret that "the state missed an opportunity to fix this problem five years ago when a bill that would have made public display of marijuana an offense similar to a traffic violation — rather than a crime — died in the Legislature."

The newspaper's proposed solution? "The city needs to do more to minimize arrests. District attorneys can take the lead by refusing to prosecute most, if not all, of these cases."

I understand the idea of prosecutorial discretion, which at least as I understand it is basically that, given the broad universe of possible crimes to pursue, prosecutors have some latitude to decide how and where to focus the finite and limited resources of their offices.

But the idea that district attorneys can, at their own initiative, just refuse to enforce a law that the legislature itself has refused to repeal or reform seems so misguided as to be fundamentally dangerous. In any system that is democratic and involves the rule of law, the people who make the laws need to be those elected to do so — the lawmakers. Law enforcement officials can't just unilaterally decide for themselves that they are going to cease enforcement of some laws. I mean, they could, but there's something fundamentally undemocratic about that.

I can understand and sympathize with the Times' concern that the laws are not being enforced in a racially impartial way — the headline of the story is "Smoking Marijuana While Black." But it doesn't seem to have occurred to the Times that one reason the legislature hasn't repealed the law — despite the huge amount of money that George Soros has invested in drug legalization, an amount of money that, on many other issues, would have the Times up in arms about the sinister disproportionate influence of billionaires subverting the political process — is that the public may not want it repealed. In fact, they may want it enforced.

In New York City, after all, you can't legally smoke a tobacco cigarette in a bar, a restaurant, a movie theater, a subway train or platform, a public park, or on a beach. Maybe people don't want other people smoking marijuana everywhere, either. Maybe people figure a lot of the people smoking marijuana in public are teenagers who would be better off doing their homework or getting a job instead. Maybe people have small children and want to be able to walk them to school or to the playground without having to brave clouds of marijuana smoke or crowds of marijuana smokers. Maybe some people just don't like the smell of the stuff. Maybe people think it's one step on the slippery slope to a deadly opoid overdose.

There are plenty of opposing arguments in favor of legalization, too. But the place for these arguments, under the Constitution of New York, is the legislature. The prosecutors can't just nullify a law on the request of the New York Times editorial writers. That isn't how it works — and for good reason. Conceivably there are some situations where a law is so morally repugnant or unconscionable that a prosecutor could refuse to enforce it; say, segregation laws in the Jim Crow-era South. But the Times doesn't make a clear case that this law falls into that category. It's almost enough to make one wonder what exactly it is they are smoking over at the Times editorial board.